In December 2014, in the final moments of the lame-duck session, Governor Pat Quinn (D) signed a bill into law reducing Illinois’s jury size from 12 to 6 and increasing juror pay. The law is effective June 1, 2015. The bill was passed without bipartisan support just as recently elected Governor Bruce Rauner (R) was set to take office. Governor Rauner is targeting the law for repeal, but this is likely a futile effort without the support of the Democrat-controlled Illinois General Assembly.

Previously, parties in a civil case were entitled to demand a 12-person jury. For cases filed before June 1, 2015, the parties are still entitled to a 12-person jury if demanded and paid for.

The law was passed under the guise of increasing juror pay. Jurors will now receive $25 for the first day of service, and $50 for each additional day. Presently, jurors in Cook County receive $17.20 per day, while jurors in some other Illinois counties receive the statutory minimum of between $4 and $10 per day. Supporters of the law maintain that reducing the jury size from 12 to 6 was a necessary corollary to offset the pay increase.

The measure is largely viewed as favorable to plaintiffs and unfavorable to defendants, as underscored by the fact that the bill was lobbied by the Illinois Trial Lawyers Association (plaintiffs’ bar) and generally opposed by the Illinois Association for Defense Trial Counsel. The defense bar contends that it is easier for plaintiffs to convince 6 jurors than it is to convince 12, which they must do as plaintiffs have the burden of proof. Stated differently, it is easier for the defense to convince 1 in 12 to hold out than it is to convince 1 in 6 to hold out. This is important as Illinois requires unanimous jury verdicts. The plaintiffs’ bar makes the counterargument that—on the flip side—where the defense has a strong case, it is less likely that a 6-person jury will have a holdout for the plaintiff than a 12-person jury. In other words, the plaintiffs’ bar maintains that the law is neutral on its face, and whichever side has the better case will win irrespective of jury size.

Proponents of the law point to additional advantages, including higher pay, shorter voir dire, reduced litigation costs, and fewer citizens being called to jury duty. Supporters claim that being called upon less often and being compensated better will make jurors more willing to serve. Proponents state that the increased pay is paramount, because—although Illinois has a law requiring employers to permit employees time off for jury service—Illinois does not have a law requiring employers to pay employees for their time spent serving on a jury.

Opponents are unwavering in their belief that the law was passed with the primary intent of decreasing the jury size, and that increasing juror pay was mere pretext. Indeed, perhaps many would have been in favor of increasing juror pay, so long as it was “paid for” with other government cuts.

Opponents cite to additional drawbacks. First, they contend that 12-person juries are more diverse, which means they more accurately reflect the views of the broader community. Second, 12-person juries have a better collective memory of the testimony and other evidence, thereby decreasing the likelihood that pure emotion and passion will infiltrate jury deliberations. Third, critics claim that dominant personalities can more easily sway 6-person juries than 12-person juries. Fourth, opponents suggest that there is less debate with 6-person juries, which are more likely to reach a consensus quickly.

Interestingly, this law becomes effective on the same day as a separate measure that excludes asbestos-related personal injury claims from the ten-year construction statute of repose. We previously blogged about this measure here. Both bills were heavily backed by Democrats and the trial lawyers who support them. Both bills were also signed into law by former Governor Quinn in the waning days of his gubernatorial term.

Although recent years have seen many states, including Texas, enact tort reforms to substantially limit asbestos liabilities, the Illinois House of Representatives has just taken Illinois’ first steps in the opposite direction. On December 3, 2014, the House passed Senate Bill 2221, eliminating a long-standing and critical defense for asbestos defendants enshrined in Illinois’ construction statute of repose, 735 ILCS 5/13-214 through legislative amendment. The House’s amendment adds a new subsection (f), which exempts actions from the statute which are based on “personal injury, disability, disease, or death resulting from the discharge into the environment of any pollutant, including any waste, hazardous substance, irritant, or contaminant (including, but not limited to, smoke, vapor, soot, fumes, acids, alkalis, asbestos, toxic or corrosive chemicals, radioactive waste, or mine tailings).”

The construction statute of repose currently provides a strong defense for many asbestos litigants, and bars legal actions brought more than 10 years after an act or omission arising from the “design, planning, supervision, observation or management of construction, or construction of an improvement to real property.” 735 ILCS 5/13-214(b); Witham v. Whiting Corp., 975 F.2d 1342, 1344 (7th Cir. 1992). The statute of repose can not only improve a defendant’s chances at dismissal, but it can also enhance that party’s effective bargaining power.

While it is not clear that the bill will actually become law, the implications of passage are enormous and far-reaching. Opponents of the bill argue that broadly eliminating the ten year statute for asbestos claims unreasonably expands liability and encourages an anti-business mentality.[1] Indeed, the bill may create nearly unlimited liability given that exposures to asbestos frequently date back as many as fifty or sixty years. This will not only increase the potential liabilities of current Illinois asbestos defendants, but will doubtlessly draw previously untouchable parties – many of whom have not been in business for decades – into the litigation.

Illinois Republicans are united in their opposition to the bill, and it would likely face a veto by Republican Governor Bruce Rauner should it pass the Senate. However, with the number of Democrats in the legislature, there is a strong change of overriding any veto. Illinois may therefore be just a few votes away from earning the dubious “honor” of being the preferred jurisdiction to litigate stale asbestos claims.

Address

About Gordon & Rees

Gordon & Rees is a national litigation and business transactions firm with more than 800 attorneys across the United States. We deliver maximum value to our clients by combining the resources, size, and scale of a full-service national firm with the responsiveness, flexibility, and local knowledge of a regional firm.